Holding

A payment of mahar must be reasonable and sufficient to meet the wife’s maintenance needs; a token sum does not discharge liability under Section 127(3)(b) and the High Court’s distinction of Bai Tahira was erroneous.

Summary

Fazlunbi, a Muslim woman, was deserted by her husband K. Khader Vali who obtained a divorce and paid a meager mahar of Rs.500 and iddat maintenance of Rs.750, after which the magistrate cancelled the earlier maintenance order under Section 125 CrPC. The issue before the Supreme Court was whether such payment satisfied the condition of Section 127(3)(b) CrPC, which allows cancellation of maintenance if the wife has received a sum payable under personal law that is sufficient to meet her needs, and whether the High Court could distinguish the earlier Supreme Court decision in Bai Tahira. The Court held that the mahar must be reasonable and sufficient to prevent destitution; a token amount cannot discharge the statutory liability, and the High Court erred in distinguishing Bai Tahira, violating the binding nature of Supreme Court precedent under Art. 141. Consequently, the Supreme Court set aside the order cancelling maintenance and restored the appellant’s right to a monthly allowance. The judgment reaffirmed the protective purpose of Sections 125‑127 CrPC and the need to interpret them purposively to safeguard vulnerable divorced women.

Issues considered

The payment of mahar and iddat dues satisfies the condition of Section 127(3)(b) CrPC to discharge maintenance liability under Section 125.
Whether the High Court could validly distinguish the Supreme Court’s decision in Bai Tahira v. Ali Hussain Fassalli.
The adequacy of the mahar amount required to meet the purpose of Section 127(3)(b).

Legislation cited

Code of Criminal Procedure, 1973s. 125, s. 126, s. 127(3)(b)
Constitution of Indias. 141
Dowry Prohibition Act, 1961

Subjects

MaintenanceSection 127(3)(b)MaharIddatMuslim personal lawSupreme Court precedentArticle 141Criminal Procedure CodeDivorceWomen's rights

Judgment

1127
M 'If.!
____

FAZLUNBI A
.. v.
K. KHADER VALI AND ANR.
May 8, 1980
[V. R. KRISHNA !YER, 0. CmNNAPPA REDDY AND A. P. SEN, JJ.]
B
CJode of Criminal Procedure Code, 1973, Section 127 (3) (b), scheme and
scope of-Whether by the payment of Mahar and Iddat dues, the provisions
of s. 127(3)(b) of the Code would be complied with or th• vinculum juris
created by the order under s. 125 continues despite the make--believe ritual of
miniscule mahar which merely stultified section 127 (3) (b) Cr.P.C.-Precede11ts
I and binding nature under Article 141 of the Constitution.

}- F'azlunbi, tho appellant, married Khader Vali, the respondent, in 1966,
and during their conjugal life, a son Khader Basha;· was born to them. Tho
c
respondent, husband, an additional accounlt!nt in the Stare Bank of India,
drawing a salary of Rs. 1000/-, discarded tho wife and the child, and the
tormented woman talaqed out of the conjugal home, -sought shelter in her
parent's abode. Driven by destitution, she prayed for maintenance allowance.
for .herself and her son under section 125 Cr. P.C. and tho Magistrate granted
· payment of a monthly sum of Rs. 250/r to the wife and Rs. 150/- to the D
child. The respondent husband challenged the award in the High Court where
thC unjustified neglect was upheld, but the quantum of maintenance of the
child .was reduced to Rs. 100/- per menscm.
Thereafter, the respondent husband resorted to the unilateral technique of
talaq and tendered the magnificent sum of Rs. 500/- by way of Mahar and
Rs. 750/- towards maintenance for the period of iddat, hopeful thereby, of
extricating himself from lhe obligation to maintain the appellant The Addi-·
E
tional First Qass Magistrate vacated the grant of maintenance already granted
on the score of divorce coupled with discharge of mahar and Iddat dues. This \
order was unsuccessfully challenged in the Sessions Court. The desperate appel-
lant reached the High Court end invoked its jurisdiction under section 482
Cr!. P.C. A Division Bench of that High Court, though the revision petitioner
banked upon the decision of the Supreme Court in Bai Tahlrris case [1979)
'2 SCR 75 in her favour, distinguished that case and dismissed the petition.•
F
Hence the appellant-wife's appeal by special leave.
Allowing tho appeal, the Court
HELD. : 1. Tho conscience of social justice, the cornerstone of our Consti·
tution will be violated and the soul of the scheme of Chapter IX of the Code,
a secular safeguard of British India vintage against the outrage 0£ jetsam
women and 11otsam children, will be defiled if judicial interpretation sabotagca G
the true meaning and reduces a benign protection into a damp squib. [1131
E-F]
2. Precedents of the Supreme Court are not to be left on the shelves.
Neither could they be brushed aside saying that precedents is an .authority only
"on its actual facts". Such devices are not permissible for the High Courts when
decisions of the Supreme Court are cited before them. not merely because of II
the jurisprudence of precedents, but because of the imperatives of Article 141.
[1134 D·EJ
1128 SUPREME COURT REPORTS (1980] 3 s.c.R.

A No Judge in India, except a laraer Be:n.eh of the Supreme Court, without
a departure from judicial discipline can whittle down, wish away or be un..
bound by the ratio in Bai Tahira's case, in which Section 127(3)(b) Of
Cr!. P.C. was interpreted. The langual!C used is unmistakable, the logic at play
is irresistible, the conClusion reached is inescapable the application of the law
as expanded there is an easy task. And yet, the Division Bench, by the fine art .
B
of skirting the real reasoning laid d-own "unlaw" in the face of th.e law in
Bail Tahira which is hardly a service and surely a mischief, unintended by the
..
Court may be, but embarrassing to the subordinate Judiciary. There is no
warrant whatever for the High Court to reduce to a busk a decision of this •
Court by its doctrinal gloss. [1132 C-E] '
(3) Cr!. P.C. (Sections 125-127) is a secular code deliberately designed to
protect destitute women, who are victims of neglect during marriage and after
c divorce. It is rooted in the State's responsibility for the welfare of the weaker
sections of women and children and is not confined to members of one religion
or region, but the whole community of womanhood. Secondly muslim law
show its -reverence for the wife in the institution of Mehar (dower). It is
neither dowry nor price for marriage. [1138 C-E]

D 4. The quintessence of mehar whether it is prompt or deferred is clearly
not a contemplated quantification of a sum of money in lieu of maintenanbc
upon divorce. Indeed, dower focusses on marital happiness and -is an incident
of connubial joy. Divorce is farthest fron1 the thought of the bride and the
bridegroom \Vhen mehar is promised. Moreover, dower MJlY be prompt and is
payable ·during marriage and' cannot, therefore, be a recompense for divorce
too distant and unpleasant for the bride and bridegroom to envision on the
E buptial bed. May be, some how the masculine obsessioll of jurisprudence linked
up this promise or payment as a consolidated equivalent of maintenance after
divorce. [1140 D-F]'

·5. The language of Section 127 (3 )(b) suggests that payment of the sum
and the divorce should be essential parts of the· same transaction so as to
make one the consideration for the other. The payment of money contemp•
F lated by section 127(3) (b) should be so linked with the divorce as to become
payable only in the event of the divorce. Mehar as understood in Mohammadan
Le.w cannot, under any circumstances be considered as consideration for divorce
or a payment made in lieu of loss of connubial relationship. Under s. 127(3) (b)
of the Cr. P.C., an order for maintenance may be cancelled if the Magistrate
is satisfied that the woman has been divorced by her husband and that she
has received, whether before or after the said order,_ the whole of the sum
G which, under any customary or personal law applicable to the parties was
payable· on such divorce. Therefore, even by harmonising payments under
personal and customary laws with the obligations under ss. 125 to 127 of the
Cr. P.C., the conclusion is clear that the liquidated :sum paid at the time of
divorce must be a reasonable and not an illusory amount and will release the
-.. quondam husband from the continuing liability, only if the sum paid is
roolistically sufficient to maintain the ex-wife and salvage her from destitution
H which is the anathema of the law. This perspective of social justice alone does
iustife to the complex of provisions from s. 125 to s. 127 of the Criminal
Procedure Code. [1140 F-H, 1141 A-CJ
PAZLUNDI v. K. K. VAL! (Krishna Iyer, !.) 1129

Kunhi Muyln v. Pathimma, 1976 KLT 87 at 96; Kama/akshi v. Sankaran, A
AIR 1979 Kerala 116; Hajabean Su/aiman & Anr. v. Ibrahim Gandhabai and
Anr., Guj, L.R. Vol. XVIII 1977 p. 133 at 137-139, referred to.
6. (i) Section 127(3)(b) has a setting, scheme and a purpose and no
talaq of the purpose different from tb'e sense is permissible in statutory cons-
truction. [1141 C.D]

(ii) The payment of an amount, customary or other, contemplated by the B
measure must inset the intent of preventing destitution and providing a sum
which is more or less the present worth of tho monthly maintenance allowances
the divorce may need until death or remarriage overtake her. The policy of
the law abhors neglected wives and destitute divcrcees and <. 127 (3 )(b) takes
care to avoid double payment one under custom at the time of divorce and·
another under s. 125. [1141 D-EJ
• I
(Iii) Whatever the facts of a particular case, the Code, by enacting "· 12~
c
to 127, charges the court with the humane obligation of enforcing maintenance
or its just equivalent to ill-used wives and castaway ex-wives, only if the woman
bas received voluntarily a ~sum, at the time of divorce, sufficient to keep her
going according to the circumstances of the parties. [1141 E-F]
'
(iv) Neither personal law nor other salvationary plea will hold against the
policy of public law pervading s. 127(3) (b) as much as it does s. 125. So D
. a farthing is no substitute for a fortune nor naive consent equimlent to intelli-
&ent acceptance. [1141 F-0]
(v) Here the mahar paid is Rs. 500/- and the income therefrom may will
be Rs. S/- a month, too ludicrous to mention as maintenance. The amount
earlier awarded is the minimum. [1141 G-HJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 156 E
of 1980.
Appeal by certificate against the Judgment and Order dated ~he
21 Nov., 1979 of the Andhra Pradesh High Court in Criminal Misc.
Petition No. 1351 of 1979.
A. Suba Rao for the Appellant. F
G. Narasimhulu for Respondent No. 1.
The Judgment of the Court was delivered by
KRISHNA IYER, J.- The last judicial lap of the joorney to gender
justice made by Fazulnbi, a married woman just past 30 years and
talaged into destitution, constitutes the compassionate core of this case. G
The saga of Fazlunbi, who had earlier secured an order for mainte-
nance in her favour under s. 125 Cr. P. C. which was cancelled
under s. 127(3)(b) Cr. P. C., by three courts, tier upoo. tier in the
vertical system, by concurrent misinterpretation of the relevant pro-
vision, constitutes the kernel of her legal grievance. If her plea has
substance, social justice has been jettisoned by judicial process and a H
just and lawful claim due to a woman in distress has been denied
heartlessly and lawlessly. We say 'heartlessly', because no sensitive
13-610SCl/80
1130 SUPREME COURT REPORTS (1980] 3 S.C.R.

A juage with empathy for the weaker sex could have callously
cancelled an order for a monthly allowance already made in
her favour, as has been done here. We say 'lawlessly', because no
disciplined judge· bound by the decision of this Court which lays down
the law for the nation under Art. 141 of the Constitution could have
defied the crystal clear ruling of this Court in Bai .Tahh"a v. Ali
B Hussain Fidaalli Chothia(') by the disingenuous process distinguish-
ing the decision. We are surprised by this process of getting round the
rule in Bai Tahira's case (supra) by the artful art of concocting ·a
distinction without a difference. The Sessions Court and the High
Court, who had before them the pronouncement of the Supreme Court,
chopped legal logic to circumvent it. Reading their 'reasoning' we are
c left to exclaim how the high Bench argued itself out of Bai Tahira's
case by discovering the strange difference.
"Twixt Tweeldedum and Tweedledee", the discipline of law, the
due process of law and the rule of law become mere claptrap if
judges bmmd to obey precedent choose to disobey on untenable alibi.
D And, behind it all is the unheeded wail of Fazulnbi's womanhood for
the karuna and samata of the law and we are conscientized into
reversing the judgment under appeal in terms express, explicit and
mandatory so that masculine injustice may not crucify the weaker sex.
Small wonder that many a divorcee, beguiled by Arts. 14 and 15 and
the decision in Bai Tahira's case, may well exclaim, "How long,
E 0 Lord, how long!"
The brief facts which have led to this appeal are that Fazlunbi,
the appellant married Khader Vali, the respondent, in 1966. and
during their conjugal life, a son, Kader Basha, was born
to them. The husband, an Additional Accountant in the State Bank
F of India, apparently drawing a salary well above Rs. 1000/-, dis·
carded the wife and the child,_ and the tormented woman, ta/aged out
of the conjugal home, sought shelter in her parents' abode. Driven by
destitution, she prayed for maintenance allowance for herself and her ~
son under s. 125 Cr. P. C. and the Magistrate granted payment of a
monthly sum of Rs. 250/- to the wife and Rs. 150/- to the child. The
G husband challenged the award in the High Court where the unjustified J.
neglect was upheld but the quantum o1' maintenance of the child was
reduced to Rs. 100/- per mensem.
The respondent-husband resorted to the .unilateral technique of ~-f.
talaq, and tendered the magnificent sum of Rs. 500/- by way of
mahar and Rs. 750/- towards maintenance for the period of iddat,
11
hopeful thereby, of extricating himself from the obligation to maintain
(!) 11979] 2 SCR 75.
FAZLUNBI v. K. K. VALi (Krishna Iyer, J.) 1131

the appellant. The Additio:nal First Class Magistrate vacated the grant A
of maintenance on the score of divorce coupled with discharge of
mahar and iddat dues. This order was unsuccessfully challenged in the
Sessions Court. The desperate appellant reached the High Court and
invoked its jurisdiction under s. 482 Cr. P.C. A Division Bench of that
Court, however, dismissed the revision petition and Fazlunbi has
landed up in this Court and banks upon the application of the rule in B
Bai Tahirai's case (supra).
"• The facts are clear, the ta/aq has snapped the marital tie, the flimsy
mahar has been tendered together with the three months' iddat dues
and the divorcee remains neglected. The question is whether s. 127
( 3) (b) of the Code has been complied with or the vinculum juris C
created by the order under s. 125 continues despite the make-believe
ritual of miniscule mahar which merely stultifies s·. 127(3)(b) Cr. P. C.
and hardly fulfils it. The matter is no longer res integra. No one in his
senses can contend that the mahar of Rs. 500/- will yield income
sutlicient to maintain a woman even if she were to live on city
pavements! What is the intendment o( s. 127(3)(b)? What is the D
scheme of relief for driftwood and destitute wives and divorcees dis-
carded by heartless husbands? What is the purpose of providing absoc
lution from the obligation to pay continued maintenance by Iumpsurn
liquidation? What, in short is the text and texture of the provision, if
read in the light of the mischief to be avoided, the justice to be E
advm1ced? The conscience of social justice, the cornerstone of our
Constitution will be violated and the soul of the scheme of Chapter
IX of the Code, a secular safeguard of British Indian vintage against
the outrage of jetsam women and flotsam children, will be defiled if
judicial interpretation sabotages the true meaning and reduces a
benign protection into a damp squib. The holistic art of statutory F
construction has not the pettifogging craft of lexical and literal reading
\
of the text woefully keeping alive the moribund mores of a bygone
age but, in the felicitous diction of Cardozo, 'the task ·of a translator,
the reading of signs and symbols given from without (by those) who
have absorbed the spirit, have filled themselves with a love of the
language they must read'. Lord Denning's great tribute to the task of G
a judge is never barred by .the law of limitation(').
Many of the. Judges of England have said that they do
not make law. They only interpret it. This is an illusion
_which they have. fostered. But it is a notion which is now
being discarded everywhere. Every new decision-on every
new situation-is a development on the law. Law does nat H

(I) Foreward by Denning M. R. to Supreme CoUrt of India by Rajeev Dhavan.
1132 SUPREME COURT REPORTS [1980] 3 s.c.R.

A stand still. It moves continually. Once this is recognised, then
the task of the Judge is put on a higher plane. He must
consciously seek to mould the law so as to serve the, needs
of the time. He must not be a mere mechanic, a mere
working mason, laying brick on brick, without thought to
the overall design. He must be an architect-thinking of the
B structure as a whole-building for society a system of law
which is strong, durable and just. It is on his work that
civilised society itself depends.
-~
\Ve lay so much emphasis on the functional sensitization of a •
judge lest what is absurd may be fobbed as obvious by judicial seman-
ticisation.
c We need not labour the point because' this Court has already
interpreted s. 127(3)(b) in Bai Tahira and no judge in India;
except a larger bench of the Supreme Court without a departure from
judicial discipline can whittle down, wish away or be unbound by the
ratio thereof. The language used is unmistakable, the logic at play is
D irresistible, the conclusion reached is inescapable, the application of
the law as expounded there is an easy task. And yet, the Division
Bench, if we may with respect say so, has, by the fine art of skirting
th~ real reasoning laid dpwn 'unlaw' in the' face of the law in
Bai Tahira which is hardly a service and surely a mischief, unintended
by the Court may be, but embarrassing to the subordinate judiciary.
E There is no warrant whatever for the High Court to reduce to a
husk a decision of this Court by its doctrinal gloss. The learned judges
observe, to our baftlement--
"The decision in Bai Tahira v. Ali Hussain Fassalli
(supra) is to be confined only to the fact~ of that case. It
F falls to be distinguished for the following reasons : (iJ the
,compromise of 1962 referred to therein was construed as not
I
affecting the rights of a Muslim divorced wife in seeking to
recover maintenance under Sec. 125 Cr. P.C., (ii) what was
considered to have been paid to the Muslim divorced wife
was only the Mahar amount and not the maintenance amount
G payable for the Iddat period, (iii) The Mahar amount paid
revealed a rate _of interest which for a person residing in
Bombay was held to be wholly inadequate to do duty for
maintenance allowance, (iv) there was nothing in that caBe
to show that the amount of Rs. 130/- paid towards Iddat
represented the payment of a sufficient maintenance amount
H for the three months period of Iddat and (v) the husband in
that case did not raise any plea based on sec. 127(3)(b)
Cr. P.C."
PAZLUNBI v. K. K. VALi (Krishna Iyer, !.) 1133

Let us quote a few passages from this Court's ruling in · Bai A
Tahira (supra) to express the untenability of the excuse not to follow
the binding ratio.

Nor can Sectioh 12 7 rescue the respondent from his
obligation, payment of mehar money, as a customary dis-
charge, is within the cognizance of that provision. But B
what was the amount of mehar? Rs .. 5000/-, interest
•• from which could not keep the woman's body and soul to•
&ether for a day, even in that city where 40% of the popu-
lation are reported to live on pavements, unless she was ready
to sell her body and give up her soul! The point must be
clearly understood that the scheme of the complex of pro- c
visions in Chapter IX has a social purpose. !TI-used
wives and despen1te divorcees shall not be driven to mate-
rial and moral dereliction to seek sanctuary in the streets .
This traumatic horror animates the amplitude of Section,•
127. Where the husbahd, by customary payment at the
time of divorce, has adequately provided for the divorce, D
a subsequent series of recurrent doles is contra-indicated
and the husband liberated. This is the teleological inter-
pretation, the sociological decoding of the text of Sec.
127. The key-note though is adequacy of payment which
will take reasonable care of her main~enance.
E
The payment of illusory amounts by way of custo-
mary or personal law requirement will be COljSidered in
the reduction of maintenance rate but cannot annihilate the
rate unless it is a reasonable substitute. The legal sanc-
tity of the payment is certified by the fulfilment of the F
social obligation, not by a ritual exercise rooted in custom.
No construdfon which leads to frustration of the statutory
project can secure validation if the court is to pay true
homage to . the Constitution. The only just construqtion
of the section is that Parliament intended divorcees should
not derive a double benefit. If the payment by ahy G
mehar or ordained by custom has a reasonable relation
to the object and is a capitalised substitute for the order
under Section 125-not mathematical! y but fair! y-then
Section 127(3)(b) subserves the goal and relieves the
obliger, not pro tanto but wholly. The purpose of the
payment 'under any customary . or personal law' must be H
to obviate destitution of the divorcee and to provide her
with wherewithal to maintain herself. The whole scheme
1134 SUPREME COURT REPORTS (198()] 3 s.C.R.

A of Section 127(3) (b) is mainfestly to recognise the subs-
titute maintenance arrangement by lump sum so paid and
is potential as provision for maintenance to interpret other-
wise is to stultify the project. Law is dynamic and its
mea'ning cannot be pedantic but purposeful. The propo-
sition, therefore, is that no husband can claim under Sec-
B tion 127(3)(b) abs<Jlution from his obligation under •
Section 125 towards a divorced wife except on proof of pay-
ment of a sum stipulated by customary or personal law ...
whose quantum is more or less sufficient to do duty for
•
maintenance allowance.
c Granville Williams in his "Learning the Law" (pp. 77-78) gives
one of the reasons persuading judges to distinguish precedents is
"that the earlier decision is altogether unpalatable to the court in
the later case, so that the1 latter court wishes, to interpret it a~ nar-
rowly as possible''. The same learned author notes that some .iudges
may "in extreme and unusual circumstances, be apt to seize on
D almost any factual difference between this previous case and the
case before him in order to arrive at a different decbion. Some
precedents are continually left on the shelf in this way, as a wag
observed, they become very "distinguished''. The limit of the pro-
cess is reached when a judge says that the precedent is an authority
ottly "on its actual facts". We need hardly say that these devices
E are not permissible for the High Courts when decisions of the Supreme
Court are cited before them not merely because of the jurisprudence
of precedents, but because of the imperatives of Art. 141. .
We have been painstakingly drawn into many rulings of the High
Courts but none except this one has had t.he advantage of the pro-
F nouncement in Bai Tahira. A Division Bench of the Kerala High
I
Court-a ruling which perhaps advances the purpose more than the
Full Bench decision which overruled it-dwelt on s. 127(3) (b) of
the Code. Khalid, J. speaking for the court observed, and rightly
if we may say so with respect,(')
j
This section provides that the Magistrate shall cancel
G
the order for maintena'nce if any sum under any customary
or personal law applicable to the parties is paid on divgrce.
This section may be pressed into service by some ingenious
h1jsbands to defeat the provisions contained in section
125. We would like to make ft clear that section 127(3)
H
. (b) refers riot to maintenance during the period of iddat
or payment of dower. Unfortunately, place of dower is
{fjKunhfMoyin v-Pathumma 1976 KLT 87 at96.
FAZLUNBI v. K. K. VAL! (Krishna Iyer, l.) 1135

now occupied by dowry, payable by the girl's parents, A
which till 1-6-1961 was paid in public and thereafter in
private; thanks to the Dowry Prohibition Act, 1961. It
is therefore not a sum of money which under the personal
law is payable on divorce as eirpressed i'n Section 127(3)
(b A· On the other hand, what is impliedly covered by
this clause is such sums of money as alimony or compen- B

.• sation made payable on dissolution of the marriage und.er
customary or personal law codified 6r uncodified, or such
amount agreed upon at the time of marriage to be paid
at the time of divorce; the wife agreeing not to claim
mainte'nance or any other amount. We thought it neces-
sary to clarify this position lest there be any doubt regard-
c
ing the scope of s. 127(3)(b), for, at the first blush, it
might appear that, it takes away by one hand what is given
under s.125 by the other hand. This is not so.
While, in our view, the Full Bench decision in Kamalakshi v.
Sar.karan( 1 )in so far as it does not insist on an adequate sum D
which will yield a recurring income to maintain the divorcee in
future, is bad law and the Division Be:nch, in so far as 'it excuses
the huoband if he pays a sum which the ignorant, wife at the time
of marriage has agreed upon to relinquish maintenance after divorce,
does not go far enough. ·
E
A. division Bench of the Gujarat High Court(') has sought, even
by literal construction, to reach the conclusion that unless the di-
vorcee volu'ntarily accepts a sum in lieu of future maintenance she
is still entitled to her claim and s. 127(3)(b) will not dissolve the
liability of the husband. The Judges argue :
F
We are concerned with the interpretation of sub-sec.
(3) of sec. 127, more particularly clause (b) thereof.
\ Evi,dently, this provision which seeks to confer power on
the court to cancel an order of monthly allowance passed
by it in certain specified contingencies, has to be confined
strictly within the narrow limits laid down by snb-sec. ( 3). G
This is because the provision for maintenance of wives,
whether married or divorced, who are unable to maintain
themselves is a social welfare measure applicable to all people
irrespective. of caste, creed, community or nationality.

(!) AIR 1979 Ker. 116. H
(2) Hajeben Su/eman & Anr. v. Ibrahim Ganadbhai & Aur. Guj. L. R. Vol.
xvm 1977 p. 133 at 137-139.
1136 SUPREME COURT REPORTS [1980] 3 s.c.R.

A With the aforesaid background, we will now proceed
to examine the provisions of sub-sec. (3) of sec. 127.
A bare reading of clauses (a), (b) and (c) of that provi-
sion shows that three fact situations have been contemp-
lated by the Legislature in which the Magistrate is given
the power to cancel the order for monthly allowance. These
B fuel situations are shown by the words ( 1) has remarried
in clause (a), (2) has received in claiise (b) and (c) and
(3) had vo:untarily surrendered in clause (c). Clauses
.
•
(a) and ( c) of the said provision do not postulate any
difficulty because they contemplate the fact situations
c brought about by a voluntary and irrevocable act on the
part of the divorced wife. Thus, clause (a) contemplates
the act of the wife in getting remarried and clause (c)
contemplates the act of the wife in obtaining divorce
from her husband and surrendering her rights to mainte-
nance after divorce. Both these eventualities, as observed
D earlier, are brought abo1.1t by a voluntary and irrevocable
act on the part of the wife. If this is the obvious posi-
tion to be kept in mind with regard to the scope and con-
tent of clauses (a) and (c) of sub-sec. (3) of sec. 127,
we see no reason why we should adopt a different standard
in ascertaining the scope and content of clause (b) ;
E xx xx xx
.... it is clear that one of the eventualities conferr-
ing jurisdiction on the Magistrate to cancel an order of
monthly aQowance can come into existence only on doing
of a voluntary act by the wife of actually accepting the
amount offered as contemplated by clause (b). It is to
be noted that the Legislature has not used words indicat-
ing mere offer by the husband of the amount contemplated
by clause (b) · as sufficient to bring into existence the fact
situation contemplated or bring into existence the evenfoa-
lity on which the power of the Magistrate to cancel the
G order of maintenance is based. It appears that the Legis-
lature has advisedly used the words "has received" in order
to indicate and at the same time restrict the power of can-
celling the order of monthly allowance to cases where the
wife by a voluntary act on her part of receiving the amount
contemplated by clause (b) bri"ngs about the eventuality
H contemplated for exercise · of the said power. . . . We,
therefore, hold that in order to exercise power conferred
by clause (b) of sul:>-sec. (3) of sec. 127, it has to be
FAZLUNBI v. K. K. VALi (Krishna Iyer, J.) 1137

found as a fact that the wife has done a voluntary act of A
receiving the who:e sum contemplated to be. payable by
clause (b): If the wife showi> ]Jer unwillingness to receive.
the amount tendered, the provisions of clause (b) are not
applicable.

Even the literal and the purposive approaches may sometimes B

.• concur, once we grasp the social dynamics of interpretation, will
serve the cause of truth and justice. We are reminded of Lord
· Denning's fascinating reference in his "The Discipline of the Law"
to Portia's plea for the pound of flesh but not a drop of blood; The

.i traditional English view is Yielding to the pressure of the modern
European view (which is also the American view) expressed by
Denning in delightful diction as(')
c

"the 'schematic and teleological' method of interpreta-
tion. It is not really so alarming as it sounds. All it
means is that the judges do not go by the literal meaning
of the words or by the grammatical structure of the sen- D
tence. They go by the design of .purpose which lies be-
hind it. When they come upon a situation which is to
their minds within the spirit~but not the letter~f the
legislation, they solve the problem by looking at the design
and purpose of the legislature-at the ·effect which it was
sought to achieve. They then interpret the legislation so E
as to produce the unashamedly, without hesitation. They
ask simply: What is the sensible way of dealing with this
situation so as to give effect to the presumed purpose of
the legislation ? They Jay down the law accordingly. Jf
you study the decisions of the European Court, you will
see that they do it every day. To our eyes-shdrtsight- F
'
) ed by tradition - it is legislation, pure and simp:e. But,
to their eyes, it is fulfilling the true role of the courts.
They are giving effect' to what the legislature intendfd, or
may be presumed to have intended. I see nothing wrong
in this. Quite the contrary.
G
Another angle to the subject of Mahar and its impact on liability
H · for maintenance after divorce may be briefly considered. Khalid, J.
of the Kerala High Court in two cases has taken the view that s.125
and s.127 Cr.P.C. are conceptually unconnected with payment of
mahar and cannot bail out a muslim husband from his statutory obli- H
gation under s.125. We are aware of the criticism of this conceptual
(1) The Discipline of Law, Lord Denning, pp. 20·21.
1138 SUPREME COURT REPORTS (1980] 3 S.C.R.

A divorce between mahar and post-divorce maintenance by Dr. Tahir
Mahmood in his recent book on the 'Muslim Law of india' (see p.
l 33) where the learned author. prefers to retain the hexus between
mahar and maintenance but has this to say :
In a recent case the Supreme Court has held that the
B sum paid under personal law-referred to in clause (b)
of section 127(3) of the Code-should be "more or less
sufficient to do duty for maintenance allowance"; if it is .,.
not so it can be consid~red by the court for the reduction •
of the maintenance rate but cannot annihilate that rate.
This, indeed, is a liberal ruling and conforms to the spirit
C of Islamic law on the subject.

Aside from this controversy, we may look perspicaciously at the
legal connotation of 'dower' and the impact of its payment on divorcees'
clailll5 for maintenance. We must first remember that Cr.P. Code,
(s. 125·127) is a secular code deliberately designed to protect destitute
D women, who are victilll5 of neglect during marrrage and after divorce.
It is rooted in the State's responsibility for the welfare of the weaker
sections of women and children and is not confined to members ot
one religion or region, but the whole community of womanhood.
Secondly we must realise that Muslim law shows its reverence for
the wife in the institution of Mahar (dower). It is neither dowry
E nor price for marriage.
As explained i'n an old judgment by Justice Syed
Mahmood, mahar is "not the exchange or consideration
given by the man to the woman, but an effect of tl1e con-
tract imposed by law on the husband as a token of respect
F for its subject : the woman''. Giving a correct appraisal of
the concept of mahar, the Privy Council once described it
as "an essential incident to the status of marriage". On
another occasion it explained that mahar was a 'legal res-
ponsibility' of the husband. These judicial observations
evidence a correct understanding of the Islamic legal coh-
G cept of mahar. (')
Baillie in his Digest of Mohammaden Law says :
"Dower is not the exchange or consideration given
by the man to woman for entering into the contract; but
ah effect of the contract, imposed by the law on the hus-
H band as a token in respect, for its respect the woman ....
Dower being, as already mentioned, opposed to the, usu-
(1) Dr. Tahir Mahmood '~The Muslim Law of India" p. 71.
FAZLUNBI. v. K. K. VALi (Kn\<;hna Iyer, !.) 1139

fruct of the woman's person, the right to either is not com- A
pleted without the other. Hence on the one hand, dower
is said to be confirmed and made binding o'n the husband
by consummation, or by its substitute, a valid retirement,
or by death, which by terminating the maniage, pnts an
end to all the contingencies to which it is exposed; and
on the other hand the woman becomes entitled to it as
soon as she has surrendered her person."
"'• I I
Justice Mahmood has described the nature of Meharin Abdul
Kadir v. Salima and anr. (8 All. 149 at 157-158). According to him:

"Dower, under the Muhammadan law, is the sum of c
money or other property promised by the husba'nd to be
paid or delivered to the wife in consideration of the
marriage, and even where no . dower is expressly fixed
or mentioned at the marriage ceremony, the law confers
the right of dower upon the wife as a necessary effect of
D
marriage. To use the language of the Hedaya, 'the
payment of dower is enjoined by the law merely as a
token of respect for its subject (the woman), wherefore
the mention of it is not absolutely essential to the vali-
dity of a maniage; and, for the same reason, a marriage is
also valid, although the man were to engage in the con- E
tract on the special condition that there should be no
dower" .... (Hamilton's Hedaya by Grady, p. 44). Even
after the marriage the dower may be increased by the hus-
band during coverture .... In this sense and in no other
can dower under the Muhammadan law be regarqed as
the consideration for the connubial intercourse, and if the F
authors of the Arabic Text-books of Muhammadan law
have compared it to price in. the contract of sale, it is
simply because marriage is a civil contract under that
law ...... Such being the nature of the dower, the rules
which regulate its payment are necessarily affected by the
position· of a married woman under the Muhammadan law. G
Under that Jaw marriage does not make her property the
property of the husba'nd, nor does coverture impose any
disability upon her as to freedom of 'contract. The marri-
age contract is easily dissoluble, and the freedom of divorce
and the rule of polygamy place a power in the hands of
the husband which the law-giver intended to restrain by H
rendering the rules as to payments of dower stringent upon
the husband. No limit as to the amount of dower has
1140 . SUPREME COURT REPORTS [ l 980 J 3 S.C.R.

A been imposed, and it may either be prompt, that is,
immediately payable upon demand, or deferred, that is pay-
able upon the dissolution of ·marriage, whether by death

B
or divorce. The dower may also be partly prompt and
partly deferred; but when at the time of the marriage cere-
mony no specification in this respect is made, the whole
dower is presumed to be prompt and due on demand''.
'-
•
'
In Tyabji's Muslim Law (4th Edn) it is stated :
"Mahar is an essential incident to the status of marri- •"'
age. Regarded as a consideration for the marriage it is
in theory payable before consummation; but the Jaw allows
c its division in two parts, one of which is called 'prompt'
payable before the wife can be called upon to enter the
conjugal domicle, the other '.deferred' payable on the disso-
lution of the contract by the death of either of the parties
or by divorce. When the Kabin nama does hot specify
the portion that is prompt and that which is deferred, evi- -
D dence may be given of the custom or usage of wife's
family".
The quintessence of mahar whether it is prompt or deferred is
clearly not a contemplated quantification of a sum of money in lieu
of maintenance upoh divorce. Indeed, dower focusses on marital
- E happi,ness and is an incident of connubial joy. Divorce is fartl\cst
from the thought of the bride and the bridegroom when mehar is pro-
mised. Moreover, dower may be prompt and is payable during
marriage and cannot, therefore, be a recompense for divorce too
dista'nt and unpleasant for the bride and bridegroom to envision on
the nuptial bed. Maybe, some how the masculine obsession of
F jurisprudence linked up this promise or payment as a consolidated
I
equivalent of maintenance after divorce. Maybe, some legislatures
might have taken it in that light, but the law is to be read as the
law enacted. The language of s. 127(3)(b) appears to suggest that
payment of the sum and the divorce should be essentially parts of
the same transaction so as to make one the consideration tor the
'G other. Such customary divorce on payment of a sum of money
among the so called lower castes are not uncommon. At any rate
the payment of money contemplated by s. 127(3) (b) should be so
Jinked with the divorce as to become payable only in the event of
the .jivorce. Mahar as understood in Mohammadan Law cannot
under any circumstances be considered as consideration for divorce
H or a payment made in lieu of Joss of connubial relationship. Under
s. 127(3)(b) of the Cr.P.C., an order for maintenahce may be can-
. celled if the Magistrate is satisfied that the woman has been divorced
FAZLUNBI v. IC. IC. VAL! (Krishna Iyer, J.) 1141

by her husband and that she has received, whether before or after A
the said order, the whole of the sum which, under any customary or
personal law applicable to the parties was payable on such divorce .
• We are, therefore, inclined to the view that even by harmonising
payments under persona!! and oustomary laws with the obligations
under ss. 125 to 127 of the Cr.P.C., the conclusion is clear that the
B
liquidated sum paid at the time of divorce must be a reasonable and
not an illusory amount and will release the quondam husband from
., the continuing liability, only if the sum paid is realistically sufficient
• to maintain the ex-wife l!nd salvage her from destitution which is the
anathema of the law.. This perspective of social justice alone does
justice to the complex of provisions from s. 125 to s. 127 of the c
Criminal Procedure Code.
We may· sum up and declare the law fool-proof fashion :
(1) Section 127(3)(b) has a setting, scheme and a purpose and.
no talaq of the purpose different from the sense is permissible in
statutory construction.
D
(2) The paymeut ot'an amount, customary or other, contemplat-
ed by the measure must inset the intent of preventing destitution and
providing a sum which is more or less the present worth of the monthly
maintenance allowances the .divorce may need until death or re-
marriage overtake her. The policy of the law abhors neglected
wives and destitute divorcees and s. 127(3) (b) takes care to avoid E
double payment one under custom at the time of divorce and another
under s. 125.
(3) Whatever the facts of a particular case, the Code, by enact-
ing ss. 125 to 127, charges the court with the humane obligation of
enforcing maintenance or its just equivalent to ill-used wives and F
castaway ex-wives, only if the woman has received voluntarily a sum,
at the time of divorce, sufficient to keep her going according to the
circumstances of the parties. I -
( 4) Neither personal law nor other salvationary plea will hold
against the policy of public law pervading s. 127 (3) (b) as much as G
l
it does s. 125. So a farthing is no substitute for a fortune nor naive
consent equivalent to intelligent acceptance.
(5) Here the mahar paid is Rs. 500/- and the income therefrom
may well be Rs. 5/- a month, too ludicrous to mention as mainte-
nance. , The amount earlier awarded is the minimum.
H
l \
Before we bid farewell to Faz/unbi it is necessary to mention
that Chief Justice Baharul Islam, in an elaborate judgment replete,
I
1142 . SUPREME COURT REPORTS I [1980] 3 s.c.R.

A with quotes from the Holy Quoran, has exposed the error of early
English authors and judges who deait with talaq in Muslim Law as
good even if pronounced at whim or in tantrum, and argued against
the diehard view of Batchelor J. (ILR 30 Bombay 539) that this
view 'is good in law, though bad in theology'. Maybe, when th"
point directly arises, the question will have to be considered by this
B court, but enough unto the day the evil thereof and we do not ex-
press our opinion o'n this question as it does not call for a decision •
in the present case.
We allow the appeal. •"
Appeal allowed.. ~

j

x.